, INCERTI AC´TIO
are names used
to denote two varieties of Roman actions, viz. those in which what is
claimed is a determinate sum of money, thing or things, and those in which
the claim is for something indeterminate, respectively.
Whether an actio is certi
is to be ascertained by looking at the intentio
of its formula. In actions which were Real
in form as well as in substance (i. e. those tried per
Gaius, 4.92) the object or right claimed
was specified in the intentio
(Gaius, 4.3), so
that the action may be said to be certi,
Gaius (4.54) seems to have considered it. But it is in personal actions,
especially those on contract, that the opposition is most strongly marked.
Where the plaintiff's contention was that a specific sum of money or a
specific object was due to him from the defendant, the intentio
and ran (e.
g.) “si paret reum decem sestertios dare oportere (condictio
certi),” or “si paret reum tritici vini &c. centum
modios dare oportere (condictio triticaria).” But where what he
claimed was not of this determinate character, but he merely asked that a
sum of money due to him as damages should be ascertained by the judge, the
and was characterised by the words “quicquid
[reum] dare facere oportet” (Gaius, 4.47, 136, 137). This was the
case in condictio incerti
and in the bonae fidei judicia.
The terms certa
applied by Gaius (4.49-52) to another constituent part of the formula, viz.
which was certa
when a specific sum of money was fixed in it, incerta
when not. The first was the case only where
the claim was for an ascertained sum of money (Gaius, 4.50). In all other
actions the condemnatio
would either be
Gaius, 4.51), as in a Real action, or incerta cum taxatione,
e.g. “judex reum [p. 1.407]duntaxat
milia condemna:” here the judge might fix the damages below the
sum named, but he could not exceed it without rendering himself liable to an
action (Gaius, 4.52).